N. KUNHICFLEKKU HAJI(D) BY LRS versus STATE OF KERALA AND ORS.

Citation: [1995] 2 S.C.R. 954 · Decided: 22-03-1995 · Supreme Court of India · Bench: K. RAMASWAMY, S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
N. KUNHICflEKKU HAJI(d) BY LRS 
v. 
STATE OF KERALA AND ORS. 
MARCH 22, 1995 
B 
[K. RAMASWAMY AND S. SAGHIR AHMAD, JJ.] 
Education: 
Kerala Education Rules : 
C 
Rules 2 and 2-A-Establishment and Upgradation of new 
Schools-Application for upgrcdation-Notification-Applicant's name not 
in the list-Subsequent orders upgrading the school from primary to upper 
Primary-Challenged on the ground that once rejected not to be considered 
agairt-fleld: Not vitiated-Procedure adhered to-Need for encoura_ging 
. D educational incentives-No violation of statutory steps. 
Practice & Procedure: 
Limitation-Not bringing on record the legal representatives within 
limitation-Larger interest to be taken into account-Procedural cob-webs 
E · and technicalities not to subsume substance. 
The appellant was running a primary school. Government invited 
applications for establishing new schools or upgradation of existing 
schools. Appellant made an application for upgradation of his primary 
school into upper primary school. Government sanctioned the same, but 
F in the schedule the name of the appellant for upgradation of his school 
did not find a place. Subsequently Government issued orders in which 
appellant's name found a place. This order was challenged on the ground 
in a Writ Petition on the ground that since the applications have already 
been dismissed by its earlier notification, the Government had no jurisdic-
G tion or pmrer to grant sanction subsequently. The impugned order was 
quashed by a Single Judge and on appeal it was confirmed by the Division 
Bench. Hence this appeal. 
Allowing the appeal, this Court 
H 
HELD:l. From the recital of the G.O. it is seen that certain applica· 
954 
.-( 
y_.... 
I .. 
I 
J 
·...1 
-~ 
N.K. HATI v. STATE 
955 
tions have been deferred for detailed consideration; at. a later stage the A 
Director of Public Instructions had considered such application in detail 
and had recommended the sanction of schools in those places taking into 
consideration the educational need existing in that locality. In consequence 
the sanction of the upgradation of appellant's school was granted. 
(956-H, 959-A] 
2.1 Government have granted permission in the public interest 
upgrading the school to avoid drop out of school going children. It is 
known that Kerala has the highest literacy percentage. Even then Malap-
puram District was found to be a backward district in education and the 
Government felt that the District needs encouragement for educational 
incentives. As a consequence, the educational need was found to be 
genuine. Therefore, when the Government had found it necessary that 
there exists need for upgradation of the existing school into upper primary 
school, the Government must be allowed to exercise its statutory power 
' unless it is malafide or colourable exercise of power and is justified on 
extraneous facts in granting upgradation. (957-F-H, 958-A] 
2.2 The High Court did not record any finding that the impugned G.O. 
is vitiated by any malafide exercise of the power. After the Director of Public 
Instructions examined the matter and made recommendation, the Govern· 
ment had issued the revised G.O. Since the procedural steps required under 
Sections 2 and 2(A) of the Rules have been adhered to, there is no violation 
of the statutory steps required in this behalf. [958-H, 959-A] 
3. The fact that the Government is coming forward to transpose itself 
as an appellant would clearly indicate that there is an acute educational 
need for upgrading primary school in the locality as upper primary school. 
Moreover, children have fundamental right to education. Therefore, larger 
interest of young children should be taken into consideration in meeting 
the procedural cob-web and the technicalities should not subsume sub-
stance. Considered in that perspective, it cannot be said that the appeal 
stands abated on account of the fact that the legal representatives of the 
appellant have not been brought on record within limitation. (958-D-E] 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2044 of 
1979. 
From the Judgment and Order dated 6.2.1979 of the Kerala High 
B 
c 
D 
E 
F 
G 
Court in W.A. No. 299 of 1977. 
H 
I 
' . ' · 9~~· \.. 
·. SUPREMECOURTREPORTS. 
_. 
[~99SJ2S.C.R. 
·· ''.A'''.'.' 'T.L. Viswanatha Iyer and E.M.S. Anam with him for the-Appellant. 
-
\ < 
< 
< 
'" < < 
B 
MA. Firoz for the State. 
N.Sudhakaran for the Respondent ... 
G. :Viswanatha Iyer, 'r.v. Surendran, Dileep-

Excerpt shown. Read the full judgment & AI analysis in Lexace.